Citation Nr: 18148070 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-13 443 DATE: November 6, 2018 REMANDED Service connection for lung cancer is remanded. REASONS FOR REMAND The Veteran served honorably from March 1971 to April 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran entitlement to service connection for his lung cancer. In June of 2018, the Veteran had a hearing before the undersigned regarding the issue on appeal. The Veteran’s claim has been expanded to include any lung condition, including COPD, as other lung conditions are within the scope of the original claim. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Service connection for a disability may be granted when the evidence shows that a current disability results from an injury or disease that was incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The general requirements of service connection are (1) a current disability, (2) medical or lay evidence of an in-service incurrence or aggravation of a disease or injury, and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). During the June 2018 hearing, the Veteran testified that while in basic training, he was exposed to tear gas chambers. The Veteran stated that he was hospitalized and treated for pneumonia the day following the exposure, and the pneumonia lead to permanent lung damage that made him susceptible to lung cancer. The Veteran’s service treatment records show evidence of an upper respiratory infection, as well as treatment for pain in his lungs. Further, the December 2012 VA examination indicated that smoking is the greatest risk factor for the development of lung cancer, and the Veteran smoked a pack of cigarettes a day from the age of 19 years old until his diagnosis in 2007. The examiner also based his opinion on the fact that there was no indication of tear gas exposure in the personnel records. The Veteran’s contention is that while in service, he was exposed to tear gas in a chamber. While the service records do not indicate this event occurred, the Veteran is competent to report occurrences in service. The Veteran also contends he was treated for pneumonia in service. He is competent to report what he was treated for. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2009). The Board finds that because the Veteran is competent and credible, the in service event of tear gas exposure and treatment for pneumonia is conceded. Regarding the nexus between the in service event and the diagnosis, the Board cannot make a fully-informed decision on the issue of service connection for lung cancer because no VA examiner has opined whether the Veteran’s exposure to tear gas on a single occaision could have predisposed him to lung issues, including pneumonia or lung cancer. No VA examiner has opined on whether treatment for, or residuals from, pnuemonia could predispose a person to lung cancer or COPD later in life, nor is there an opinion whether the in service URI or lung pain is related to his current diagnosis of COPD and Lung Cancer. The December 2012 VA examination is not adequate because it did not address whether the current diagnoses of lung cancer and COPD are related to the in service treatment of an upper respiratory infection and treatment for lung pain. For this reason, the Board must remand and order a new VA examination. The Board also finds that the VA examiner will need access to the Veteran’s private treatment records, specifically cancer treatment records from the Veteran’s private doctor. The matter is REMANDED for the following action: 1. Request the Veteran’s private treatment records from any private medical treatment, including the Veteran’s cancer doctor. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed lung disability including lung cancer, including residuals, and COPD. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to tear gas. The examiner must also opine whether it is at least as likely as not related to pneumonia, as well as in service treatment for an upper respiratory infection and lung pain. Explanatory rationale must be provided citing to specific evidence in the file supporting conclusions. If the requested opinion cannot be provided without resorting to mere speculation, the examiner must state this and   specifically explain why an opinion cannot be provided without resorting to mere speculation. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Drew Kelly, Associate Counsel